Citation Nr: 1106167
Decision Date: 02/15/11 Archive Date: 02/28/11
DOCKET NO. 09-22 926 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for a psychiatric disorder,
to include posttraumatic stress disorder (PTSD) and anxiety.
2. Whether new and material evidence has been received to reopen
service connection for a breathing disorder, to include as
secondary to exposure to asbestos.
3. Entitlement to service connection for right ankle venous
ulcer, to include as due to exposure to asbestos.
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
ATTORNEY FOR THE BOARD
T. M. Gillett, Associate Counsel
INTRODUCTION
The Veteran, who is the Appellant, served on active duty from
September 1961 to January 1966.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal from an August 2008 rating decision by the Department
of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.
Throughout the pendency of this appeal, one of the Veteran's
claims has been adjudicated as service connection for PTSD;
however, as the Veteran has been diagnosed with other psychiatric
disorders, to include an anxiety disorder, the Board finds that
the claim should be classified as one of service connection for a
psychiatric disorder, to include PTSD and an anxiety disorder.
See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a
health disability claim includes any disability that may
reasonably be encompassed by the claimant's description of the
claim, reported symptoms, and the other information of record).
The Veteran did not request a hearing before the Board. In
January 2010, the Veteran submitted additional evidence,
consisting of VA treatment records, along with a waiver of
regional office review.
The respective issues of service connection for a breathing
disorder and a right ankle venous ulcer are addressed in the
REMAND portion of the decision below and are REMANDED to the RO
via the Appeals Management Center (AMC) in Washington, DC.
FINDINGS OF FACT
1. The Veteran did not engage in combat with the enemy during
service.
2. The Veteran was not personally assaulted in service.
3. The medical evidence of record does not contain a diagnosis
of PTSD or any other disorder related to any actual occurrence in
service .
4. The Veteran did not experience chronic symptomatology of a
psychiatric disorder during service.
5. The Veteran did not experience continuous symptomatology of a
psychiatric disorder after service.
6. In an August 2005 rating determination, the RO denied service
connection for a breathing disorder, to include as due to
asbestos exposure; the Veteran did not appeal to the Board within
the required time period.
7. Evidence received since the July 2005 rating decision denying
service connection for a breath disorder, to include as due to
asbestos exposure, raises a reasonable possibility of
substantiating the claim.
CONCLUSIONS OF LAW
1. Service connection for a psychiatric disorder, to include
PTSD and anxiety, is not warranted. 38 U.S.C.A. §§ 1110, 1131,
5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102,
3.159, 3.303, 3.304, 4.125 (2010).
2. The August 2005 rating decision denying service connection
for a breathing disorder, to include as due to asbestos exposure,
became final. 38 U.S.C.A.
§ 7105 (c) (West 2002 & Supp. 2010); 38 C.F.R. §§ 20.302, 20.1103
(2010).
3. Evidence received since the August 2005 rating decision
denying service connection for a breathing disorder, to include
as due to asbestos exposure, is new and material, and the claim
is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2010); 38
C.F.R. § 3.156 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duties to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the United States Department of Veterans Affairs (VA) has
a duty to notify and assist Veterans in substantiating a claim
for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107,
5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a),
3.159, 3.326(a) (2010). Because the determination below
constitutes a grant of the application to reopen service
connection for a breathing disorder, there is no reason to
discuss the impact of the VCAA on that particular issue. For the
claim for service connection for a psychiatric disorder, the
Board will proceed to review compliance with the VCAA.
VA has a duty to notify the claimant of any information and
evidence needed to substantiate and complete a claim. 38
U.S.C.A. §§ 5102, 5103. In order to meet the requirements of 38
U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must (1)
inform the veteran about the information and evidence necessary
to substantiate the claim; (2) inform the veteran about the
information and evidence that VA will seek to provide; and (3)
inform the veteran about the information and evidence the veteran
is expected to provide. VCAA notice should be provided to a
veteran before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim. See Pelegrini v.
Principi, 18 Vet. App. 112 (2004).
The United States Court of Appeals for Veterans Claims (Court)
held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006),
that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and
38 C.F.R. § 3.159(b) apply to all five elements of a service
connection claim. Those five elements include (1) the veteran's
status; (2) the existence of a disability; (3) a connection
between the veteran's service and the disability; (4) the degree
of disability; and (5) the effective date of the disability. The
Court held that upon receipt of an application for a service
connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)
require VA to review the information and the evidence presented
with the claim, and to provide the veteran with notice of what
information and evidence not previously provided, if any, will
assist in substantiating or is necessary to substantiate the
elements of the claim as reasonably contemplated by the
application. Id. at 486. This notice must also inform the
veteran that a disability rating and an effective date for the
award of benefits will be assigned if service connection is
granted. Id.
In this case, a VCAA notice letter sent in August 2007
substantially satisfied the provisions of 38 U.S.C.A. § 5103(a).
In this letter, VA informed the Veteran about the information and
evidence not of record that was necessary to substantiate the
service connection claim; the information and evidence that VA
would seek to provide; the information and evidence the Veteran
was expected to provide; and information regarding disability
rates and effective dates required by Dingess.
The Board finds that all necessary assistance has been provided
to the Veteran. VA has acquired the Veteran's service and VA
treatment records to assist the Veteran with the claim. In March
2009, the Veteran was provided with a VA psychiatric examination
to determine the nature and etiology of his claimed psychiatric
disorder. The Board notes that the claims file, to include the
service treatment records, were not provided to the March 2009 VA
examiner. However, the Board finds that the examination was
still adequate. First, the Board notes that the March 2009 VA
examiner was able to review the Veteran's VA treatment records
included in the electronic database and noted three such records
in his report.
Also, as will be explained more thoroughly following, the
Veteran's service treatment records do not contain any notation
indicating diagnosis or treatment for a psychiatric disorder
during service, that is, there is no credible evidence of an in-
service injury, disease, or event (including psychiatric
symptoms) to which a purported nexus opinion could relate current
psychiatric disability to service. Because there is no in-
service injury or disease to which competent medical opinion
could relate a current disability, there is no reasonable
possibility that a VA examination or opinion could aid in
substantiating the current claim for service connection for a
psychiatric disorder. See 38 U.S.C.A. § 5103A(a)(2) (West 2002)
(VA "is not required to provide assistance to a claimant . . .
if no reasonable possibility exists that such assistance would
aid in substantiating the claim");
38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is
"no reasonable possibility that further assistance would
substantiate the claim").
The Board has considered the decision in Charles v. Principi, 16
Vet. App. 370, 374-75 (2002); however, in the absence of evidence
of an in-service disease or injury, referral of this case to
obtain an examination and/or an opinion as to the etiology of the
Veteran's claimed disability would in essence place the examining
physician in the role of a fact finder, would suggest reliance on
an inaccurate history of occurrence of an in-service injury or
disease, and could only result in a speculative opinion or
purported opinion of no probative value. In other words, any
medical opinion which purported to provide a nexus between the
Veteran's claimed disability and his military service would
necessarily be based on an inaccurate history regarding what
occurred in service, so would be of no probative value. The U.S.
Court of Appeals for Veterans Claims (Court) has held on a number
of occasions that a medical opinion premised upon an
unsubstantiated account of a claimant is of no probative value.
See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally
observing that a medical opinion premised upon an unsubstantiated
account is of no probative value, and does not serve to verify
the occurrences described); Reonal v. Brown, 5 Vet. App. 458,
461 (1993) (the Board is not bound to accept a physician's
opinion when it is based exclusively on the recitations of a
claimant that have been previously rejected).
The service treatment records also contain no notation indicating
treatment or diagnosis for an alleged assault as suggested by the
Veteran. The record indicates that the March 2009 VA examiner
reviewed the history as provided by the Veteran and, having
examined the Veteran, determined that he did not have PTSD or any
other psychiatric disorder due to service. As the March 2009 VA
psychiatric examination report was written after an interview
with the Veteran and a review of the Veteran's VA treatment
records, contained specific findings indicating the nature of the
Veteran's claimed disability, and also contained an opinion,
backed by clinical evidence, explaining why the Veteran did not
have a service-related psychiatric disorder, there is no duty to
provide an additional examination or medical opinion for this
claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).
In view of the foregoing, the Board finds that VA has fulfilled
its duty to notify and assist the Veteran in the service
connection claim under consideration. Adjudication of the claim
at this juncture, without directing or accomplishing any
additional notification and/or development action, poses no risk
of prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384,
394 (1993).
Service Connection Laws and Regulations
Service connection may be granted for disability arising from
disease or injury incurred in or aggravated by active service.
38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. For the
showing of chronic disease in service, there is required a
combination of manifestations sufficient to identify the disease
entity, and sufficient observation to establish chronicity at the
time. If a condition noted during service is not shown to be
chronic, then generally, a showing of continuity of symptoms
after service is required for service connection. See 38 C.F.R.
§ 3.303(b). Service connection may also be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the disease
was incurred in service. 38 C.F.R. § 3.303(d).
In order to prevail on the issue of service connection,
generally, there must be
(1) medical evidence of a current disability; (2) medical, or in
certain circumstances, lay evidence of in-service occurrence or
aggravation of a disease or injury; and (3) medical evidence of a
nexus between the claimed in-service disease or injury and the
present disease or injury. Hickson v. West, 12 Vet. App. 247,
253 (1999).
Service connection for PTSD requires medical evidence diagnosing
the condition in accordance with 38 C.F.R. § 4.125(a); a link,
established by medical evidence, between current symptoms and an
in-service stressor; and credible supporting evidence that the
claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f).
If the evidence establishes that the veteran engaged in combat
with the enemy and the claimed stressor is related to that
combat, in the absence of clear and convincing evidence to the
contrary, and provided that the claimed stressor is consistent
with the circumstances, conditions, or hardships of a veteran's
service, the veteran's lay testimony alone may establish the
occurrence of the claimed in-service stressor.
38 U.S.C.A. § 1154(b) (West 2002 & Supp. 2010); 38 C.F.R. §
3.304(f). Participation in combat, a determination that is to be
made on a case-by-case basis, requires that a Veteran personally
participated in events constituting an actual fight or encounter
with a military foe or hostile unit or instrumentality. See
VAOPGCPREC 12-99; Moran v. Principi, 17 Vet. App. 149 (2003); see
also Sizemore v. Principi, 18 Vet. App. 264, 273-74 (2004).
If a veteran did not engage in combat with the enemy, or the
claimed stressors are not related to combat, and the stressor is
not related to "fear of hostile military or terrorist activity,"
then a veteran's testimony alone is not sufficient to establish
the occurrence of the claimed stressors, and his testimony must
be corroborated by credible supporting evidence. Cohen, 10 Vet.
App. at 128; Moreau v. Brown,
9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163
(1996). Furthermore, service department records must support,
and not contradict, the claimant's testimony regarding non-combat
stressors. Doran v. Brown, 6 Vet. App. 283 (1994).
The question of whether a veteran was exposed to a stressor in
service is a factual one, and VA adjudicators are not bound to
accept uncorroborated accounts of stressors or medical opinions
based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190
(1991), aff'd on reconsideration, 1 Vet. App. 406 (1991). Hence,
whether a stressor was of sufficient gravity to cause or support
a diagnosis of posttraumatic stress disorder is a question of
fact for medical professionals and whether the evidence
establishes the occurrence of stressors is a question of fact for
adjudicators.
A PTSD claim based upon personal assault also involves different
considerations. If a claim for service connection for PTSD is
based on allegations of in-service personal assault, evidence
from sources other than the Veteran's service records may
corroborate the Veteran's account of the stressor incident.
Examples of such evidence include, but are not limited to:
records from law enforcement authorities, rape crisis centers,
mental health counseling centers, hospitals, or physicians;
pregnancy tests or tests for sexually transmitted diseases; and
statements from family members, roommates, fellow service
members, or clergy.
Evidence of behavior changes following the claimed assault is one
type of relevant evidence that may be found in these sources.
Examples of behavior changes that may constitute credible
evidence of the stressor and such evidence include, but are not
limited to: a request for a transfer to another military duty
assignment; deterioration in work performance; substance abuse;
episodes of depression, panic attacks, or anxiety without an
identifiable cause; or unexplained economic or social behavior
changes.
The regulation specifically provides that VA will not deny a PTSD
claim that is based on in-service personal assault without first
advising the claimant that evidence from sources other than a
veteran's service records or evidence of behavior changes may
constitute credible supporting evidence of the stressor and
allowing him or her the opportunity to furnish this type of
evidence or advise VA of potential sources of such evidence. VA
may submit any evidence that it receives to an appropriate
medical or mental health professional for an opinion as to
whether it indicates that a personal assault occurred. 38 C.F.R.
§ 3.304(f)(3).
It is the defined and consistently applied policy of the VA to
administer the law under a broad interpretation, consistent,
however, with the facts shown in every case. When, after careful
consideration of all procurable and assembled data, a reasonable
doubt arises regarding service origin, the degree of disability,
or any other point, such doubt will be resolved in favor of the
claimant. By reasonable doubt is meant one that exists because
of an approximate balance of positive and negative evidence,
which does not satisfactorily prove or disprove the claim. It is
a substantial doubt and one within the range of probability as
distinguished from pure speculation or remote possibility. See
38 C.F.R. § 3.102.
Analysis of Service Connection for PTSD
The Veteran essentially contends that he developed PTSD or an
acquired psychiatric disorder due to stressors in service.
Specifically, the Veteran claims that, at some point during
service, he was attacked by three other service members. He
indicated that, during this attack, the three men held him down
and held a "K bar" to his neck. Having considered the evidence
of record in light of the regulations noted above, the Board
finds that a preponderance of the evidence is against service
connection for PTSD or any other psychiatric disorder.
First, the Board finds that the Veteran did not participate in
combat with the enemy during service. Reviewing the evidence of
record, in a service personnel record, specifically a Report of
Transfer or Discharge (DD Form 214), the Veteran's military
occupational specialty is listed as Reclamation and Salvage Man,
which is not a combat-related occupation. Moreover, the DD Form
214 indicated that, during service, the Veteran was not awarded
any decorations or medals indicating combat. Also, throughout
the evidence of record, the Veteran has never claimed to have
participated in combat. Therefore, the Board finds that the
Veteran's claimed stressors must be corroborated by credible
supporting evidence. Cohen, 10 Vet. App. at 128; Moreau, 9 Vet.
App. at 389; Dizoglio, 9 Vet. App. at 163.
The Board further finds that the Veteran's claimed in-service
stressor, specifically an in-service assault, has not been
corroborated by service records or other credible supporting
evidence. The Board finds that the Veteran's accounts of an in-
service assault are not credible and, as his accounts are the
basic evidence regarding the assault's occurrence, that the
Veteran was not assaulted during service. See Smith v.
Derwinski, 1 Vet. App. 235, 237-38 (1991) (credibility is
determined by the Board as fact finder).
Reviewing the evidence, the Veteran's service treatment records
do not include any notation or diagnosis for a psychiatric
disorder, or chronic symptoms of psychiatric disorder in service.
The Veteran's January 1966 service discharge medical examination
indicated that the Veteran did not have any psychiatric
disorders. The records also do not include any notations for
wounds experienced during an assault.
As will be explained below, the Veteran has given various dates
for the supposed assault. In his most recent statements, the
Veteran claimed that he was assaulted in either June or July
1963. Reviewing the service treatment records from that period,
in June 1963 service treatment records, the Veteran was treated
for acute urethritis due to gonococcus and nonspecific
urethtritis. The Veteran stated that he was exposed in Okinawa
and described onset of symptoms in June 1963. He was medically
quarantined from June 24, 1963 through July 1, 1963. In a July
31, 1963 VA treatment record, the examiner stated that the
Veteran was to be quarantined for 10 days due to urethritis
acute. In a contemporaneous record, the Veteran stated that he
noticed onset of symptoms on July 26, 1963. Therefore, the
service treatment records, including those from June and July
1963, contain no mention of treatment for an assault or a
resulting psychiatric disorder. Service personnel records also
contain no reports of an assault.
Reviewing the post-discharge treatment records and statements
regarding the claimed stressor and its claimed effects, in an
April 2006 VA treatment record, the Veteran stated that during
basic training a drill instructor "busted" him in the mouth.
He also stated that, after he had joined service and was still 17
years old, three individuals sat on top of him one night and held
a "K bar" to his throat. He indicated that he was able to talk
to them and they released him. He stated that he still woke up
feeling a knife to his throat, but denied experiencing
hallucinations. The Veteran stated that, for a while, he slept
with a weapon under the bed. The Veteran indicated that he used
to drink over the years in order to sleep soundly at night, but,
since he had cut back drinking, he had started to experience
anxiety again. The diagnoses were an anxiety disorder NOS and
rule-out PTSD.
Subsequently, in a May 2006 VA treatment record, the Veteran
stated that he was mistrustful of blacks as black men had
assaulted him during service. He indicated that he relived the
incident and would ruminate on it. He now feared being around
black men. He stated that he had been anxious since service, but
never knew that it was a problem until he read of symptoms and
realized that he had PTSD.
In an August 2007 statement, the Veteran reported that, during
service, he was assaulted by three people on Okinawa and that he
woke up at night believing that someone was cutting off his head.
The Veteran also stated that he refused to take any mind-altering
drugs and wished only to undergo therapy for his disorder.
In a December 2007 VA treatment record, Veteran denied any
hypervigilance, hyperstartle response, or nightmares associated
with the incident. However, he stated that he would wake up
feeling that someone had a knife to his throat and that he tended
to avoid large groups of people. The Veteran reported that he
had experienced nocturnal anxiety episodes since service and,
therefore, had self-treated with alcohol for many years. The
examiner stated that, from the history supplied by the Veteran,
it was likely that the Veteran was sufficiently symptomatic at
discharge from service to warrant a diagnosis of PTSD which was
not made at the time. At this time, the only remaining remnant
of the original symptoms complex was bad dreams. The diagnosis
was anxiety disorder.
In an undated handwritten notation, written directly on the copy
of the December 2007 VA treatment record included in the claims
file, the Veteran wrote that he had been hypervigilant at certain
times for 47 years.
In a May 2008 VA treatment record, the Veteran indicated that he
had awoken at night frequently for forty-seven years, feeling as
if there was a knife to his throat. He indicated that the three
men were black. However, he now felt afraid of white men as
well. He stated that he felt more on guard around people. He
also indicated that, sometimes, he would get a feeling that
someone was after him and that, one day during the prior week, he
saw a man standing by his bed. The diagnoses were anxiety
disorder NOS and PTSD symptomatology.
VA treatment records indicate that the Veteran was prescribed
sertraline (Zoloft) in May 2008. In a May 2008 VA treatment
record, the Veteran reported that he no longer felt on guard
anymore.
In a July 2008 VA treatment record, the Veteran recalled that the
three individuals who assaulted him during service were fellow
Marines from another unit. He recalled that he woke up to find
one sitting on him, another sitting on his chest, and a third
sitting on his legs. He remembered thinking that they were going
to kill him. He told them to shine "the light" in his face
because they had the wrong man. He indicated that he only saw
the face of one of the men. He reported that, over the years, he
thought he would see the persons who assaulted him by his bed.
He indicated keeping a loaded pistol on his nightstand in case
the person returned. He stated that he was now getting more rest
than ever before. He also reported giving the gun in his
nightstand to his wife. The diagnosis was PTSD.
In an October 2008 statement, the Veteran indicated that on July
29, 1963, in Okinawa, he was attacked by three African-American
Marines with a K-bar. He stated that the three individuals sat
on his legs, stomach and chest, and put a knife to his throat,
awakening him. He was told that they would cut his head off. He
also indicated that they told him that they would be "back to
finish the job." He stated that he had been on alert every day
of his life since the incident. He recalled that he tried to get
help from the sergeant in charge, but was told to simply watch
for the perpetrators in his area. He said that he stayed up all
night waiting for the men to return with a pistol and, as such,
could not get up for his duties. He indicated that he would have
flashbacks of the attack, to include waking up and feeling that
the incident was happening again. He stated that he had slept
with weapons ever since. He indicated that, since he started
taking sertraline (Zoloft), his life had been livable again.
While filing the above statement, the Veteran also submitted a
copy of his in-service disciplinary proceedings, apparently as
corroborating evidence regarding behavioral changes after the
assault. In these documents, a notation dated July 31, 1963
indicates that the Veteran was punished for failing to go to his
appointed place of duty at 5:30 A.M. He was awarded 14 days of
restriction to the company area. On October 3, 1963, the Veteran
was punished for again failing to leave his bunk despite being
ordered to do so by a superior officer at 5:30 A.M. He was
awarded 14 days of restriction to the company area and had to
forfeit $20 per month. Finally, on February 5, 1964, the Veteran
was noted to be absent without leave from 12:01 A.M. to 1:30 A.M.
He was awarded one week of restriction to the dispensary, two
hours of duty per days, and a monetary fine.
In a March 2009 PTSD examination report, the VA examiner
indicated that he did not have the claims file to review. In an
interview, the Veteran stated that, during service, he lost rank
due to numerous write-ups for insubordination, not reporting for
duty, and for waiting up with guns for the individuals who
assaulted him to return. He blamed the disciplinary actions on
the assault and stated that he merely sought to protect himself
from further attacks. The Veteran reported that the incident
occurred in June 1963 in Okinawa. He indicated that he told his
staff sergeant about the incident, but nothing was ever done
about it and the individuals were never identified. He indicated
that he had been hypervigilant ever since the incident. He
stated that he slept with a loaded pistol, experienced nightmares
in which the perpetrator of the incident came towards him, and
occasionally saw a vision of the perpetrator beside his bed.
In the March 2009 VA examination report, Veteran stated that he
had alcohol problems over the years related to his PTSD which was
related to the in-service assault. He worked for 38 years as a
barber, running his own barbershop for many of those years. He
stated that he had missed work at times because of his alcohol
abuse. He also stated that the PTSD, caused by the single
incident, caused his anger problems which led to the end of his
first marriage. He indicated that he had quit using alcohol two
years prior and that his anger problems went away after the use
of Zoloft. Besides alcoholism, the Veteran could not name any
particular occupational impairment caused by PTSD.
As noted above, the March 2009 examiner did not have a copy of
the claims file, to include the Veteran's service records;
however, he did have access to the Veteran's computerized
treatment records. He noted the May 2006 VA treatment record
diagnosing alcohol abuse, a January 2009 VA treatment record
indicating anxiety disorder, and a March 2009 VA treatment record
diagnosing PTSD. In his report, the VA examiner noted that the
Veteran seemed to contradict himself in stating that he saw the
perpetrator at the foot of his bed as the perpetrator was never
identified. Moreover, the examiner stated that the Veteran
reported still experiencing symptoms of a psychiatric disorder,
but then indicated that he had not experienced any symptoms since
being prescribed Zoloft.
Having reviewed the file, the March 2009 VA examiner assessed
that the Veteran did not fit the criteria for a diagnosis of
PTSD. This assessment was based on factually accurate
assumptions that are consistent with the Board's findings in this
decision, which include that the Veteran was not personally
assaulted during service. The VA examiner did not believe that
the Veteran had problems related to an assault during service.
The examiner stated that, having conducted a mental status
examination, he found that the Veteran had some mood instability
and overall immaturity, but opined that these were derived from
sources other than the alleged in-service assault. The VA
examiner noted that psychometric testing, specifically that
conducted using the Minnesota Multiphasic Personality Inventory-
II, found that people with the Veteran's scores tended to be
immature, egocentric, demanding, selfish with difficulty getting
along with others, and tended to make physical complaints lacking
in full substantiation by medical findings. Furthermore, the
Veteran's scores were reflective of mood instability consistent
with an undifferentiated somatoform disorder. The diagnoses
based on the interview were an undifferentiated somatoform
disorder and alcohol dependency. The examiner assessed that the
Veteran did not have PTSD, and that the Veteran did not have a
service-related mental disorder.
Finally, in a September 2009 statement, the Veteran's wife
indicated that she had been with her husband for 39 years. She
reported noticing that he was irritable, and hypervigilant. She
stated that she would wake up in the middle of the night, finding
him with a pistol in his hand or checking to see if someone were
outside their door. She also indicated that he would wake up in
the middle of the night, gasping for air. She indicated that he
also had nightmares and bad dreams throughout her marriage. She
said that, from talking to her husband, his behavior was due to
"3 black guys" attacking him "while in his Marine Corp (sic)
barracks asleep in Okinawa, in 1963." She stated that once, in
1975, while in their home in Bedford, Texas, the Veteran was
having a drink while attempting to fall asleep in their bedroom.
He called her into the room and told her to take the gun, keep
the kids in the room, and to shoot him in the leg if he came out
of the room. The Veteran's wife stated that she called the
police at that time and they stayed at the house for several
hours. She indicated that her husband told the police that they
he had experienced a nightmare and they left. Her husband later
explained that he did this because he believed that he had been
told by the voices of the men who jumped him that his family
would die more horrible deaths than they could have imagined if
he had killed the men. She reported leaving the Veteran on
several occasions due to his behavior. She said she told him
that she would come back if he got help. She stated that, in
2000, the Veteran went to the VA hospital and was prescribed
Zoloft to change his mood. She indicated that he was doing
better with his PTSD symptoms at this time.
Having reviewed this lengthy evidence of record, the Board finds
that the record does not contain evidence corroborating the
Veteran's claimed stressors. First, the Board notes that,
initially, the Veteran claimed that he was "busted" in the
mouth by a drill instructor during basic training; however, the
Veteran never mentioned this incident again in subsequent
retellings of the alleged in-service stressful events, and never
suggested that it resulted in any mental disorder.
Regarding the incident involving an assault by three individuals,
the Board finds that the Veteran's service treatment records do
not contain any documentation corroborating the Veteran's
account. As noted above, the service treatment and personnel
records contains no notation indicating treatment for an assault.
The Veteran's service treatment records indicate that the Veteran
was never diagnosed as having any psychiatric disorder during
service, or even complaining of psychiatric symptoms during
service. While the absence of treatment in service alone is
generally only one factor for consideration, and is not required
to corroborate a veteran's assertion of in-service stressor, the
absence of treatment entry in this Veteran's case is highly
probative because the Veteran specifically represented that he
was treated in service following the alleged assault. Also,
despite the Veteran's statements made during the claim that he
experienced anxiousness since the in-service incident, the
Veteran's January 1966 service discharge examination report
indicated that the Veteran did not have any psychiatric problems
upon discharge.
In the March 2009 VA PTSD examination report, the Veteran stated
that he told his staff sergeant about the incident; however, the
record contains no notation made by any of the Veteran's
superiors about the incident. Moreover, in October 2009, the
Veteran filed a copy of his in-service disciplinary proceedings,
indicating punishment for either failing to be at his appointed
station or being AWOL on July 31, 1963, October 3, 1963, and
February 5, 1964, respectively. The record indicates that the
Veteran sought medical treatment on July 31, 1963, the date of
the first disciplinary action; however, instead of seeking help
for anxiety or any other symptomatology related to an assault,
service treatment records indicate that the Veteran instead
sought treatment for urethrititis acute which had become
symptomatic a few days earlier. Such evidence of treatment for
unrelated disorders reflects an affirmative absence of complaints
or treatment for the claimed assault, which is inconsistent with
the Veteran's assertion of treatment following an assault.
Moreover, the Veteran's service personnel evaluations never
indicated any changes in performance or the quality of the
Veteran's service. The Veteran's performance scores consistently
indicated good performance. On May 11, 1963, the scores were
4.2, 4.5 and 4.5. On July 31, 1963, they were 4.2, 4.5, and 4.5.
On November 2, 1963, they were 4.2, 3.9, and 4.3. On January 31,
1964, they were 4.2, ,4.4, and 4.4. For the rest of the
Veteran's nearly two years in service, the Veteran's lowest
performance rating was a 3.5 in January 1966 and, even in that
month, his other scores were 4.0 and 4.0. Therefore, the record
does not indicate a deterioration in work performance after the
purported assault.
In support of his claim, the Veteran submitted a letter from his
wife; however, as the Veteran's wife has been with the Veteran
for only 39 years, she admits that all knowledge she has of the
incident comes from conversations with the Veteran. As the wife
is not a witness to the events or behavioral changes soon after
the alleged in-service events, her repetition of what the Veteran
told her is no more probative value than the Veteran's own story
of in-service assault. For this reason, the Board find that the
Veteran's claimed in-service stressor involving an in-service
assault by three fellow Marines has not been corroborated by the
wife's statements.
Moreover, as stated above, the Board finds that the Veteran's
accounts of an in-service assault lack credibility. See Madden
v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (finding that the
Board, as part of its duties, is required to assess the
credibility, and therefore the probative value, of proffered
evidence in the context of the record as a whole). First, the
Board notes that the Veteran's statements indicating in-service
behavior changes due to the assault and subsequent disciplinary
actions are internally inconsistent and inconsistent with other
evidence of record, so are not credible. As noted above, the
Veteran stated that, after the incident, he was punished during
service for missing his assigned duties as he was unable to
awaken, having stayed up looking for the attackers. However, in
later statements inconsistent with this one, the Veteran
indicated that he was further disciplined for keeping guns and
ammunitions at his bedside. Also, the Veteran stated that he
lost ranks due to these behaviors and left service as a result of
disciplinary actions.
The e record indicates that the Veteran was disciplined three
times, between July 31, 1963 and February 5, 1964. In the first
disciplinary action, dated July 31, 1963, the Veteran was
punished for failure to appear at his place of duty. However,
the account of the second infraction, dated October 3, 1963,
indicates that the Veteran was ordered by a superior officer to
be out of his bunk and report to duty, and he refused to obey.
This account, indicating a direct refusal to follow orders,
contrasts with the Veteran's story of sleeping through his
assignment due to a lack of sleep. The final infraction report,
dated February 5, 1964, indicates that the Veteran violated
Article 86 of the Uniform Code of Military Justice, indicating
that he was AWOL from 0001 (12:01 A.M. to 0130 (1:30 A.M) on
February 5, 1964. The Board notes that, considering the Veteran
was AWOL in the middle of the night, this infraction does not
support the Veteran's contention that he had trouble making his
morning duty due to oversleeping.
The Board notes that, after the last infraction, the Veteran
continued to serve until January 1966 and that, during this
nearly two-year span, he was never punished for any subsequent
behavioral problems. Further, although the Veteran was punished
for failing to report and going AWOL, the service personnel
records contain no notation indicating punishment for keeping
ammunition by his bedside, as claimed by the Veteran. Also, the
service personal records contain no notation indicating that the
Veteran lost ranks due to his post-assault behavior. In fact,
the service personnel records indicate that the Veteran was
promoted from a private first class to a lance corporal in
January 1965. The record indicates no demotions of rank or other
punishment after this promotion until the Veteran's honorable
discharge in January 1966. As the contemporaneous service
personnel records contradict the Veteran's accounts of
disciplinary actions resulting from abnormal behavior caused by
the in-service incident, the Board finds that his accounts of
such behavior lack credibility.
More importantly, the Board finds that the Veteran's accounts of
the assault itself lack credibility. First, and most
importantly, the Board notes that the Veteran's accounts of the
assault are not internally consistent, as details constantly
changed or were added. Initially, in an April 2006 VA treatment
record, the Veteran stated that the assault occurred while he was
still 17 years old. As the Veteran was born in March 1944, to be
consistent, the incident would have had to have occurred in the
period between March 1961 and March 1962. However, in later
statements, the Veteran indicated the incident occurred on
Okinawa. As the Veteran was stationed in Okinawa from February
1963 to February 1964, the record would suggest that the incident
occurred between these dates. However, in a notation written on
a VA treatment record, the Veteran stated that, as a result of
the incident, he had been hypervigilant for the past 47 years.
The Board notes that the file has been in the Board's care and
custody since December 1963, so the Veteran must have written the
notation at some time between December 2007 and December 2009.
If 47 years had passed since the incident, as suggested in this
record, the incident would have occurred in a period between 1960
and 1962. Yet, in an October 2008 statement, issued with a copy
of the disciplinary proceedings indicating punishment on July 31,
1963, the Veteran stated that the incident definitely occurred on
July 29, 1963. However, in the March 2009 PTSD examination
report, the Veteran recalled that it occurred in June 1963. The
Board notes that the Veteran essentially claims that this
incident scarred him for life, causing symptomatology thereafter.
Therefore, the Veteran's inability to recall a consistent date,
to include the month or, at least, the year, undermines his
credibility.
Moreover, the Board notes that the details of the Veteran's
accounts are inconsistent, with the Veteran changing and adding
facts with each telling. Initially, in April 2006, the Veteran
claimed that three individuals sat on top of him at night and
held a "K bar" to his throat. He indicated that he was able to
talk to them and they released him. In a May 2006 VA treatment
record, the Veteran recalled that the individuals were African-
American, a fact not previously specified. In July 2008,
although the Veteran stated that he only saw the face of one man,
and that the three men shone a light in his face to see who the
Veteran was, indicating that it was too dark to discern anyone's
face. However, despite being in the dark and being unable to see
the faces of any man but one, the Veteran asserted that he was
able to identify the three men as both African-Americans and as
fellow Marines from another unit.
Moreover, in his early accounts, the Veteran did not recount any
instances in which the individuals said anything to him, such as
any threats, and reported that they left after the Veteran talked
to them. However, in an October 2008 statement, the Veteran
stated that the men threatened to cut off his head and, upon
leaving, despite finding out that they had the wrong individual,
told him that they would be "back to finish the job." As the
Veteran's story has changed so dramatically over the pendency of
this appeal, contains many implausible details such as the
ability to identify the individuals race and unit in a dark room,
is not corroborated by the evidence in the service personnel and
service treatment records, but is contradicted by service
treatment and personnel records that reflect no complaints or
treatment for assault and no corroborating behavioral changes,
the Board finds that the Veteran's stressor story is not
credible.
Considering the treatment records indicating a normal psychiatric
demeanor at discharge, continued promotion throughout service,
and the lack of disciplinary proceedings claimed by the Veteran,
the Board finds that the evidence affirmatively indicates that
the assault did not occur. For these reasons, the Board finds
that the weight of the evidence demonstrates that the Veteran was
not personally assaulted in service. The question of whether the
Veteran was exposed to a stressor in service is a factual one,
and VA adjudicators are not bound to accept uncorroborated
accounts of stressors or medical opinions based upon such
accounts. See Wood,
1 Vet. App. at 190 (noting that the question of whether the
Veteran was exposed to a stressor in service is a factual one to
be determined by the adjudicator).
Reviewing the medical evidence, the Board notes that the record
contains many VA treatment records indicating a diagnosis PTSD or
anxiety, due to the in-service assault. However, as the Board
finds that the evidence indicates that the in-service assault did
not occur, the Board finds that the examination findings of a
mental disorder based on the alleged assault are based on an
inaccurate factual premise, so are of no probative value. Id.
(noting that the adjudicator is not bound to accept
uncorroborated accounts of stressors or medical opinions based
upon uncorroborated stressors). The Court has held on a number
of occasions that a medical opinion premised upon an
unsubstantiated account of a claimant is of no probative value.
See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally
observing that a medical opinion premised upon an unsubstantiated
account is of no probative value, and does not serve to verify
the occurrences described); Reonal v. Brown, 5 Vet. App. 458,
461 (1993) (the Board is not bound to accept a physician's
opinion when it is based exclusively on the recitations of a
claimant that have been previously rejected).
The Board also notes that, in the March 2009 PTSD examination
report, the examiner detailed reviewing the Veteran's recent VA
treatment records, to include those diagnosing PTSD. He also
interviewed the Veteran and performed a thorough examination,
including the provision of a Minnesota Multiphasic Personality
Inventory-II test. Based on the records, interview, and testing,
the VA examiner diagnosed the Veteran with mood instability
consistent with an undifferentiated somatoform disorder. The
diagnoses based on the interview were an undifferentiated
somatoform disorder and alcohol dependency, in remission.
Considering the thoroughness of the examination and the rationale
presented for the findings, the Board finds that the March 2009
PTSD examiner's findings have probative value in this matter.
See Prejean v. West, 13 Vet. App. 444, 448 (2000) (indicating
that the Board may determine the probative value of medical
opinions based on their detail of their analysis).
Finally, the Board notes that, in the informal hearing
presentation, the Veteran's representative contended that the
Veteran should be awarded service connection for a mental
disorder because the evidence showed that he had a mental
disorder during service, continuous symptomatology of a mental
disorder after service, and a currently diagnosed mental
disorder. See 38 C.F.R. § 3.304(f). As proof of an in-service
mental disorder, the representative called attention to the
December 2007 VA treatment record, in which a VA examiner wrote
"from history supplied by the Veteran, it is likely that he was
symptomatic at discharge from . . . service to warrant a
diagnosis of PTSD which was not made at that time." The Board
notes that the December 2007 VA examiner wrote this opinion,
based entirely on the Veteran's factually inaccurate account of
an in-service assault and symptomatology of a psychiatric
disorder throughout service. As explained above, the Board finds
that the assault did not occur and that the service treatment and
personnel records contradict the Veteran's accounts of in-service
symptomatology. As the December 2007 VA examiner's findings were
based entirely on the Veteran's accounts of an in-service assault
which did not occur, the Board does not accept its findings,
which are of no probative value. See Wood, 1 Vet. App. at 190.
The Veteran has stated that he has experienced symptomatology of
a psychiatric disorder, in particular hypervigilance, since
service. His wife also submitted a statement, indicating that
the Veteran experienced symptomatology based on the in-service
assault. However, the Board again notes that the accounts of the
Veteran and his wife were based on symptomatology arising from
memories of the in-service assault which the Board finds did not
occur. Therefore, the Board finds them to lack credibility in
this matter.
Parenthetically, the Board also notes that the Veteran's accounts
of post-service symptomatology are so inconsistent as to lack
credibility. In the first record of treatment, dated April 2006,
the Veteran stated that he had recently started to feel anxiety
when he stopped drinking two years prior. He said that he woke
up, feeling a knife at his throat, but specifically denied any
hallucinations. Inconsistent with this assertion, in a July 2008
VA treatment record, the Veteran reported seeing a vision of a
person who assaulted him by his bedside. In a December 2007 VA
treatment record, the Veteran specifically denied being
hypervigilant; however, in May 2008 during VA treatment, the
Veteran claimed to have experienced hypervigilance for the past
47 years.
Even the September 2009 statement, submitted by the Veteran's
wife, is inconsistent with regard to the both the symptomatology
reported by the Veteran and the history of the case as stated in
the claims file. In this account, the Veteran's wife stated
that, during one incident in 1975, the Veteran informed her that
he had heard the voices of the three men who had assaulted him
during service and that they were threatening to kill the
Veteran's family if he tried to hurt these men; therefore, he
gave her a gun and told her to shoot him in the leg if he left
his bedroom. The Board notes that in this statement the
Veteran's wife is claiming that the Veteran experienced auditory
hallucinations, voices in his head, he thought were those of the
three men. Throughout the treatment records included in the
record, the Veteran claimed to have experienced visual
hallucinations, but never mentioned experiencing auditory
hallucinations.
Moreover, the Veteran's wife stated that, due to his symptoms,
she left the Veteran and did not return until he sought treatment
at the VA and began taking Zoloft in 2000. Contradictory to this
assertion, the record shows that the Veteran did not seek
treatment until April 2006, and VA treatment records show that
the Veteran was not prescribed Zoloft until May 2008. As the
Veteran's wife essentially claims that the Veteran's treatment
and use of medication had saved their marriage, one would expect
that she would have a better memory of what year said treatment
occurred. For these reasons, and other reasons previously cited,
the Board finds the accounts of the Veteran and his wife are not
credible because they are inconsistent with each other and
inconsistent with the facts noted in other evidence of record.
In conclusion, the Board finds as a fact that the Veteran was not
assaulted during service. Consequently, all accounts of in-
service assault, of chronic psychiatric symptoms in service or
continuous post-service symptoms, are factually inaccurate.
There is also no factual basis to support the purported medical
findings that current psychiatric symptomatology is related to
service, as there is no in-service injury or disease to which
such currently diagnosed psychiatric disorders could be related.
The evidence of record not only does not corroborate his non-
combat stressor, but is affirmatively inconsistent with many of
the reported details surrounding the in-service stressors and
other in-service events claimed by the Veteran pursuant to his VA
disability compensation claim.
The treatment records do not contain a diagnosis of PTSD related
to a confirmed stressor. Also, the evidence does not indicate a
diagnosis for a service-related psychiatric disorder that is
based upon a factually accurate history, that is, that is not
based on the Veteran's accounts of symptoms associated with the
claimed in-service assault. For these reasons, the Board finds
that the preponderance of evidence weighs against the Veteran's
claim for service connection for a psychiatric disorder,
including PTSD and anxiety. As the preponderance of the evidence
weighs against the Veteran's claim, the benefit of the doubt
doctrine is not applicable, and the claim for service connection
must be denied. See 38 U.S.C.A.
§ 5107(b); 38 C.F.R. § 3.102.
New and Material Evidence Laws and Regulations
Generally, a claim which has been denied may not thereafter be
reopened and allowed based on the same record. 38 U.S.C.A. §
7105. However, pursuant to
38 C.F.R. § 5108, if new and material evidence is presented or
secured with respect to a claim which has been disallowed, the VA
Secretary shall reopen the claim and review the former
disposition of the claim.
New evidence is defined as existing evidence not previously
submitted to agency decision makers. Material evidence is
defined as existing evidence that, by itself or when considered
with previous evidence of record, relates to an unestablished
fact necessary to substantiate the claim. New and material
evidence can be neither cumulative nor redundant of the evidence
of record at the time of the last prior final denial of the claim
sought to be reopened, and must raise a reasonable possibility of
substantiating the claim. 38 C.F.R. § 3.156(a). In determining
whether evidence is "new and material," the credibility of the
new evidence must be presumed. Justus v. Principi, 3 Vet. App.
510, 513 (1992).
Regardless of the RO's determination as to whether new and
material evidence has been submitted, the Board has a
jurisdictional responsibility to determine whether a claim
previously denied by the RO is properly reopened. See Jackson v.
Principi, 265 F.2d 1366 (Fed. Cir. 2001) (citing 38 U.S.C.A. §§
5108, 7105(c)). Accordingly, the Board must initially determine
whether there is new and material evidence to reopen the claim.
Reopening Service Connection for a Breathing Disorder
In an August 2005 rating decision, the RO denied the Veteran's
claim for a breathing disorder, to include as due to exposure to
asbestosis, finding that the evidence did not show that the
Veteran has a current diagnosis of a breathing disorder.
Because the Veteran did not appeal this decision to the Board, it
became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104, 20.302,
20.1103 (2010).
Reviewing the evidence submitted since the August 2005 rating
decision, in a June 2009 VA treatment record, an examiner
diagnosed the Veteran as having chronic obstructive pulmonary
disorder (COPD). In multiple statements and treatment records,
the Veteran has contended that his breathing problems are related
to in-service exposure to asbestos.
The Board finds that the June 2009 VA treatment record indicates
that the Veteran has a breathing disorder, specifically COPD, a
diagnosed disability not in evidence at the time of the August
2005 rating decision. Therefore, the Board finds that the
evidence received since the August 2005 rating decision regarding
the Veteran's hypertension is new and material, as it relates to
an unestablished fact of a current COPD diagnosis that is
necessary to substantiate the claim for service connection, and
raises a reasonable possibility of substantiating the claim.
Accordingly, the evidence is new and material, and the claim for
service connection for a breathing disorder will be reopened. 38
U.S.C.A. § 5108; 38 C.F.R. § 3.156.
ORDER
Service connection for a psychiatric disorder, to include PTSD
and anxiety, is denied.
Service connection for a breathing disorder, to include as
secondary to asbestos exposure, is reopened.
REMAND
The Board finds that additional development is warranted to
address the merits of the Veteran's respective claims for service
connection for a breathing disorder and a right ankle venous
ulcer, both to include as due to asbestos exposure. 38 C.F.R.
§ 19.9 (2010).
VA must afford a veteran a medical examination or obtain a
medical opinion when necessary to make a decision on a claim.
See 38 U.S.C.A. § 5103A(d); 38 C.F.R.
§ 3.159(c)(4) (West 2002 & Supp. 2010). The Court in McLendon v.
Nicholson,
20 Vet. App. 79 (2006), provided further guidance, outlining that
VA must provide a medical examination when there is: (1)
competent evidence of a current disability or persistent
recurrent symptoms of a disability; (2) evidence establishing
that an event, injury, or disease occurred in service or
establishing certain diseases manifesting during an applicable
presumptive period for which the claimant qualifies, and (3) an
indication that the disability or persistent or recurrent
symptoms of a disability may be associated with the veteran's
service or with another service-connected disability, but (4)
insufficient competent medical evidence on file for the Secretary
to make a decision on the claim.
With respect to the third factor above, the Court stated that
this element establishes a low threshold and requires only that
the evidence "indicates" that there "may" be a nexus between the
current disability or symptoms and the veteran's service. The
types of evidence that "indicate" that a current disability "may
be associated" with military service include, but are not limited
to, medical evidence that suggests a nexus but is too equivocal
or lacking in specificity to support a decision on the merits, or
credible evidence of continuity of symptomatology such as pain or
other symptoms capable of lay observation. McLendon, 20 Vet.
App. at 83.
Regarding service connection for a breathing disorder, as noted
above, the Veteran has been diagnosed with a breathing disorder,
specifically COPD. The Veteran has repeatedly insisted that the
disorder was due to asbestos exposure during service. The Board
notes that, as stated in the May 2009 Statement of the Case, VA
recognizes that the Veteran experienced some degree of asbestos
exposure during service. The Board further notes that, in an
August 2009 VA treatment record, indicating a CT scan of the
Veteran's chest, the examiner found no calcified or noncalcified
pleural plaque formation evident at the time. Therefore, the
examiner found no current, definitive CT evidence of prior
asbestos exposure.
Although the August 2009 VA treatment record weighs against the
Veteran's claim, the Veteran was not provided with an examination
to determine whether the Veteran's current breathing disorder,
diagnosed as COPD, is related to any incident in service, to
include the asbestos exposure. As the Veteran was diagnosed with
COPD during the pendency of this appeal, was exposed to some
asbestos during service, and is now contending that his COPD is
related to an incident during service, specifically the in-
service exposure to asbestos, the record contains sufficient
evidence suggesting that a breathing disorder may be associated
with active service so as to warrant a VA examination and medical
opinion under the low threshold of McLendon.
Likewise, regarding the claim for service connection for a right
ankle venous ulcer, the Veteran has a current diagnosis for this
disability. The Veteran contends that this disability is related
to asbestos exposure during service. The Board also notes that,
in a May 1965 service treatment record, the examiner noted that
the Veteran had experienced an in-service traumatic injury to the
right ankle due to a motor bike accident. As the Veteran has a
diagnosed right ankle venous ulcer, experienced a right ankle
injury during service, was exposed to some asbestos during
service, and is now contending that his right ankle venous ulcer
is related to an incident during service, specifically exposure
to asbestos, the record contains sufficient evidence suggesting
that right ankle venous ulcer may be associated with active
service so as to warrant a VA examination and medical opinion
under the low threshold of McLendon.
Accordingly, the issues of service connection for a breathing
disorder (COPD) and service connection for a right ankle venous
ulcer are REMANDED for the following action:
1. Schedule the Veteran for appropriate VA
medical examination(s), to include a
pulmonary examination. The examiner should
identify any current breathing or right ankle
disorder. The relevant evidence from the
claims file should be available for the
examiner's review. The examination should
include X-rays, CT scans, or any other
necessary testing to determine exposure to
asbestos. If X-rays are performed, the
examiner is asked to identify any
radiological changes attributable to exposure
to asbestos. The examiner should also
perform all necessary tests necessary
regarding the Veteran's right ankle venous
ulcer.
The examiner(s) should then offer the
following opinions:
(a) Is it at least as likely as not (50
percent or greater probability) that any
breathing disorder that is currently
present, to include COPD, began during
service or is causally linked to any
incident of service, to include the in-
service asbestos exposure?
(b) Is it at least as likely as not (50
percent or greater probability) that that
the Veteran's right ankle venous ulcer
began during service or is causally linked
to any incident of service, to include the
in-service asbestos exposure or the May
1965 right ankle injury?
The examiner is requested to answer the
questions posed with use of the as likely,
more likely, or less likely language. If the
examiner must resort to speculation to answer
the questions presented, it should be so
stated in the examination report. In writing
the opinions addressing the above-listed
questions, the examiner should expressly
indicate the bases for the opinions,
including the clinical findings or other
evidence of record that support the opinions.
The examiner is advised that the term "as
likely as not" does not mean within the realm
of possibility. Rather, it means that the
weight of medical evidence both for and
against a conclusion is so evenly divided
that it is medically sound to find in favor
of causation as to find against causation.
More likely and as likely support the
contended onset date or causal relationship;
less likely weighs against the claim.
2. After completion of the foregoing and all
other necessary development, the AMC/RO
should re-adjudicate the Veteran's respective
claims for service connection for a breathing
disorder and a right ankle venous ulcer, both
including as secondary to in-service asbestos
exposure. If the benefits sought remain
denied, the Veteran and his representative
should be furnished a Supplemental Statement
of the Case (SSOC), and should be given an
opportunity to submit written or other
argument in response before the claims file
is returned to the Board for further
appellate consideration.
The Veteran has the right to submit additional evidence and
argument on the matters the Board has remanded. Kutscherousky v.
West, 12 Vet. App. 369 (1999). The Veteran is advised to appear
and participate in any scheduled VA examination(s), as failure to
do so may result in denial of the claim(s). See 38 C.F.R.
§ 3.655 (2010).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2010).
______________________________________________
J. Parker
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs